In "A Child is Missing" we report all Federal Hague Convention Child Abduction Cases. We also provide information to help legal practitioners understand the basic issues, discover what questions to ask and learn where to look for more information when there is a child abduction that crosses country boarders.

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Thursday, August 16, 2012

In Mota v. Castillo, --- F.3d ----, 2012 WL 3330176 (C.A.2 (N.Y.) Asuncion Mota and Rivera Castillo married in Puebla, Mexico in March 2006. Later that year, in September, Asuncion Mota gave birth to their daughter, Elena. For the first six months of her life, Elena lived in Puebla with both of her parents. Then, in March 2007, when Elena was six months old, Rivera Castillo left Puebla and entered the United States illegally. He traveled to Queens, New York, where he obtained full-time employment, and began sending financial support to his wife and daughter. Meanwhile, in Mexico, Asuncion Mota assumed sole responsibility for Elena's day-to- day care, and she and Rivera Castillo maintained regular communication via telephone. In the spring of 2010, Asuncion Mota and Rivera Castillo decided to reunite their family: mother and child would move to New York, where the three would again live together. Toward that end, mother and father agreed to the following arrangements. Asuncion Mota, her uncle, and Elena would travel from Puebla to Nogales, a Mexican city close to the Arizona border. There, using funds provided by Rivera Castillo, Mota would hire a person or persons to smuggle Elena across the border. After Elena had entered the United States, Asuncion Mota and her uncle would cross the border themselves, and travel with Elena to New York. The plan was successful only in part. Asuncion Mota was able to arrange for smugglers to take Elena across the border, but the repeated attempts of Asuncion Mota and her uncle to follow Elena into the United States were blocked by American border guards, and the two were returned in each instance to Mexico. Meanwhile, the smugglers had transported Elena on her own to New York, where she began living with her father. After living for some months more in a house in Nogales, Asuncion Mota procured for herself and her uncle certain false identification, which they used in a renewed attempt to cross the border. This attempt, too, failed, but with more disastrous consequences: the pair were arrested and prosecuted for use of false identification. Each pleaded guilty and served a seventy-five-day prison term in the United States before being deported to Mexico. By the time Asuncion Mota was deported after her release from prison, it had become "apparent" that "the plan for the mother to enter the United States and travel to New York had been, and would continue to be, frustrated." Rivera Castillo had begun living with another woman, and it became evident that Rivera Castillo would no longer send financial support to Asuncion Mota. In response to Asuncion Mota's repeated demands that Elena be returned to her in Mexico, Rivera Castillo declared that he would keep Elena with him in New York.

In October 2010, Asuncion Mota contacted the Mexican government and sought to obtain relief through diplomatic channels. Within two weeks of being contacted by the State Department, Rivera Castillo instituted custody proceedings in New York Family Court, seeking sole custody of Elena. Having obtained no relief through official diplomatic channels, in November 2011 Asuncion Mota filed a petition in federal district court seeking an order requiring Rivera Castillo to return Elena to her in Mexico. After trial, the court issued a decision concluding that Elena's country of "habitual residence" under the Convention was Mexico; that Rivera Castillo had "wrongfully retained" Elena in contravention of Asuncion Mota's custody rights under Mexican law; and that the Hague Convention and ICARA therefore required that Elena be returned to Mexico forthwith. A . A.M. v. J.L.R.C., 840 F.Supp.2d 624 (E.D.N.Y.2012).

The Second Circuit affirmed. It pointed out that in cases arising under the Hague Convention and ICARA, it reviews a district court's factual determinations for clear error, and reviews de novo a district court's interpretation of the Convention and its application of the Convention to the facts.

The Second Circuit observed that the Convention places two substantive provisions at the core of any petition seeking relief. A petitioner must demonstrate: (a) the child in question was "habitually resident" in a Contracting State before the child's removal to or retention in a different state, and (b) removal or retention of the child was "wrongful." A preponderance of the evidence must support a petitioner's showing. In the absence of any guidance from the Convention or ICARA regarding the crucial determination of a child's state of "habitual residence," the Court in Gitter adopted the following approach: “ First, the court should inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent.” Gitter, 396 F.3d at 134.

Although the parties' intent presented a factual determination that it reviewed for clear error, the determination of "habitual residence" under the Convention is a legal precept that it reviews de novo.

The Court stated that it primary consideration in determining a child's place of habitual residence is the shared intention of the child's parents "at the latest time that their intent was shared." "[T]his is a question of fact in which the findings of the district court are entitled to deference, and we consequently review those findings for clear error." Under the deferential "clear error" standard, "[w]e will not upset a factual finding unless we are left with the definite and firm conviction that a mistake has been committed."

For the first three and one-half years of her life, Elena's habitual residence was in Mexico: until she was brought to the United States in 2010, Elena had lived only in Mexico, apparently with the intention of both parents that their daughter would live in Mexico indefinitely. No argument had been made to the contrary.

According to Rivera Castillo, however, as of April 2010 "it was the parties' settled intention" that Elena "move ... to the United States." This new intention, he argued, "negates the conclusion that Mexico continued to be her habitual residence." Rivera Castillo called "clear error" the district court's finding that the parents' agreement that Elena would move to New York was conditioned upon Elena joining a household that included both her father and her mother. In support, Rivera Castillo emphasized that only he testified as to the specifics of the agreement to move the family to the United States, and that his testimony did not suggest that Elena's habitual residence in America was contingent upon Asuncion Mota's success in entering the country. Thus, when asked on cross-examination whether Asuncion Mota had consented to Rivera Castillo keeping Elena in the United States, even if Asuncion Mota did not join them, Rivera Castillo answered, "We never talked about there being any kind of condition." In response to the district court's query whether Rivera Castillo had "ever discuss[ed] with [Asuncion Mota] what would happen if the child came over and she did not," Rivera Castillo answered, "We never talked about that." Rivera Castillo also posited on appeal that Asuncion Mota offered "no evidence that her consent to Elena's move to the United States was conditioned on her own ability to achieve entry into the United States." He pointed out that the district court rejected as incredible Asuncion Mota's account of the planned border crossing, and argued that there was no basis on which the district court could reasonably find that a condition attached to the plan for Elena to be brought to New York.

The Second Circuit was not persuaded with this argument. Notwithstanding Rivera Castillo's assertions and the district court's rejection of the particulars of Asuncion Mota's account of Elena's border crossing, the record evidence sustained the district court's factual finding as to the parties' latest shared intention. Asuncion Mota was Elena's primary caretaker for the first three and one-half years of her daughter's life, and, as the district court found, Elena "was raised in a loving, supportive home in Mexico." A.A.M., 840 F.Supp.2d at 638. Asuncion Mota proved herself a devoted mother and was persistent in her efforts to retrieve Elena after the plan fell through. After her multiple failed attempts to enter the United States, and having served a seventy-five-day term of incarceration, Asuncion Mota demanded that Rivera Castillo return Elena to Mexico. She contacted Mexican authorities to obtain help in recovering her child. She instituted this lawsuit, and continued to prosecute it from Mexico in hopes of reuniting with Elena. During the bench trial, Elena was put on the phone so that she could listen to and speak with her mother. As the district court observed, Elena "was obviously delighted to hear her mother's voice," and "[i]t was clear that a warm relationship continued to exist between the two." The impression of Asuncion Mota that emerged from the record was that of a committed parent who had sought to keep her child close to her. The record was devoid of any suggestion that Asuncion Mota intended permanently to abandon Elena. Asuncion Mota testified that she never intended that Elena would live permanently in the United States, and that she had only helped smuggle Elena across the Arizona border to allow her father to visit with her for a few hours. Although the district court rejected the particulars of this account as not credible, it permissibly relied on the core of Asuncion Mota's testimony, to the effect that she always intended for Elena to be by her side. The district court thus reasonably inferred from Asuncion Mota's actions, the proffered testimony, and personal observations that it was more likely than not that Asuncion Mota intended for Elena to live in the United States only if she herself could join the household and continue to raise her child. On review, the Court was not "left with the definite and firm conviction" that the district court was mistaken.

The Second Circuit held that Asuncion Mota's intention that Elena live in the United States only if she, as mother, were able to join Elena there was dispositive of the determination of Elena's habitual residence. If Rivera Castillo shared this conditional intention with his wife, Elena's habitual residence would lie in Mexico, because the condition was not satisfied. Were Asuncion Mota unable to join her daughter in America, Elena's stay would be temporary, and the daughter would rejoin her mother in Mexico, her habitual residence. And if (as he said) Rivera Castillo did not share his wife's understanding, Elena's habitual residence would still lie in Mexico: if the parents did not agree that Elena would live indefinitely in America regardless of her mother's presence, it could not be said the parents "shared an intent" in April 2010 that America would be Elena's state of habitual residence. Thus, the "latest time" (in Gitter's phrase) in which Asuncion Mota and Rivera Castillo shared an intent regarding Elena's habitual residence would have occurred earlier, before they decided to have Elena and her mother join Rivera Castillo in New York, and when both parents intended that Elena would live indefinitely in Mexico.

The Court observed that although the shared intentions of Elena's parents strongly favored a conclusion that Mexico was Elena's state of habitual residence for Convention and ICARA purposes, Gitter advises that the Court must also consider whether "evidence points unequivocally to the conclusion that [Elena] has become acclimatized to [her] new surroundings and that [her] habitual residence has consequently shifted" to the United States. In analyzing this factor, courts should be "slow to infer" that a child's acclimatization "trumps the parents' shared intent." Therefore, only in "relatively rare circumstances" in which a child's degree of acclimatization is "so complete that serious harm ... can be expected to result from compelling his [or her] return to the family's intended residence" might the Court conclude that the child's habitual residence has shifted to his or her new location. The evidence in no way suggested that returning Elena to Mexico would subject her to serious harm. Elena spent the first three and one-half years of her life in a "loving, supportive home in Mexico, and a "warm relationship continue[s] to exist between" her and her mother. The district court expressly found that Elena "faces no risk of harm, physical or psychological, upon her return" to Mexico. The Court recognized that Elena lived for the last two years in New York. But this duration of time was not nearly so great that it could presume that returning her to Mexico would expose her to the "severe harm" one associates with a child's "deprivation of [her] acclimatized life." This was particularly so given the evidence of the loving home with her mother that awaited Elena in her native country. The Court noted that her uncertain immigration status, as well as the undocumented status of her father, placed an additional obstacle on the path to determining that a supervening acclimatization had occurred.

It concluded that the evidence adduced before the district court was sufficient to support the district court's finding that when last they shared an intent about Elena's residence, Elena's parents intended that she live in Mexico, a factor it assigned controlling weight in fixing the state of the child's habitual residence. The evidence did not point unequivocally to the conclusion that Elena had become acclimatized to her new surroundings and that her habitual residence had shifted to the United States as a consequence. Because Elena was a habitual resident of Mexico at the time Rivera Castillo retained Elena in the United States, the first prong of Gitter was satisfied.

Having found that Mexico was the country of Elena's "habitual residence," the Court found that as a matter of law Rivera Castillo's removal or retention of Elena "was in breach of [Asuncion Mota's] custody rights under the law of the State of habitual residence," and that Asuncion Mota was exercising those rights at the time of the retention-or would have been exercising those rights but for the retention. Rivera Castillo did not dispute that his retention of Elena in the United States violated Asuncion Mota's right under Mexican law to maintain physical custody of her daughter. In addition, the evidence supported the district court's uncontested factual finding that Asuncion Mota would be exercising this custody right "but for the retention by [ Rivera Castillo] in New York, and there was no argument to the contrary.

Rivera Castillo argued that the "consent" exception set out in Article 13 of the Convention applies in this case. The Second Circuit agreed with the district court that Rivera Castillo's argument was unavailing. Asuncion Mota's consent to her daughter's relocation was conditioned upon her own ability to join father and daughter in New York. The failure of this condition annulled Asuncion Mota's consent.

Rivera Castillo also urged the court to consider whether the exception set forth in Article 12 of the Convention might apply here. Under Article 12, a court is not bound to return a wrongfully removed or retained child if the respondent shows by a preponderance of the evidence (1) that the return proceeding was commenced more than one year after the wrongful removal or retention, and (2) that the child "is now settled in its new environment." Hague Convention, art. 12; see also42 U.S.C.s 11603(e)(2)(B). As Rivera Castillo did not raise this issue before the district court, and made only passing reference to it in his reply brief on appeal, the Court treated this argument as waived. (Citing In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir.2008) ("Although we may exercise discretion to consider waived arguments where necessary to avoid a manifest injustice, the circumstances normally do not militate in favor of an exercise of discretion to address new arguments on appeal where those arguments were available to the parties below and they proffer no reason for their failure to raise [them].")

The Second Circuit concluded that Mexico was the country of Elena's habitual residence at the time relevant for this analysis; that Rivera Castillo had wrongfully retained Elena in the United States; and that no statutory exception applied. Elena must therefore be returned to Mexico, where her parents' respective custody rights may be fully adjudicated.

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Joel R. Brandes is the author of the "Law and the Family New York 2d", and "Law and the Family New York Forms" (Thomson-West). He is not a lawyer.
Joel R. Brandes Consulting Services, Inc. is not a law firm, or a lawyer and does not give legal advice.
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This blog is dedicated to all of those parents, relatives and friends of persons whose children are missing and have been abducted by a parent, to another country. The Convention on the Civil Aspects of International Child Abduction, commonly referred to as the Hague Convention, established procedures to enable parents to obtain the prompt return, to their country of habitual residence, of children who have been unlawfully removed or retained in another country. In this blog we will focus on providing information with regard to what to do where there is a child abduction that crosses country boarders.

This Blog is written by Joel R. Brandes, the author of Law and the Family New York, Second Edition Revised, and Law and the Family New York Forms (Thomson-West), Bari Brandes Corbin, of the New York Bar, and co-author of Law and the Family New York, Second Edition, Revised, Volumes 5 & 6 (Thomson-West), and Evan B. Brandes, of the New York and Massachusetts Bars, and a Solicitor in New South Wales, Australia. The authors write the annual supplements to Law and the Family New York, Second Edition Revised, and Law and the Family New York Forms